ExpertDetermination

2010-09-04T18:13:22Z

Clarification

←Older revision		Revision as of 18:13, 4 September 2010
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	{\| border=1 cellspacing=0		{\| border=1 cellspacing=0
-	\|width=15%\| 6.4.1 \|\| In Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd (2009) ~~TCC~~ 4 June 2009 Ramsey J (Lawtel) one party had commenced proceedings in the court as a precaution. This was held not to be an election to proceed in the courts and a stay was granted. See article by Hammonds at http://www.hammonds.com/FileServer.aspx?oID=22616.	+	\|width=15%\| 6.4.1 \|\| In Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB) (04 June 2009)
		+	URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/3839.html 4 June 2009 Ramsey J (Lawtel) one party had commenced proceedings in the court as a precaution. This was held not to be an election to proceed in the courts and a stay was granted. See article by Hammonds at http://www.hammonds.com/FileServer.aspx?oID=22616.

	In Australia, stay refused where expert determination was part of a stepped procedure and could not be enforced: Where the contract failed to identify the expert the clause could not be enforced: Banabelle Electrical v State of NSW (2002) 54 NSWLR 503 at 70, [2005] NSWSC 714 at 75 [http://www.austlii.org Austlii]; see (2009) 25 Const LJ 483 Trevor Thomas "Expert Determination in Major Construction Disputes: Public Policy, Uncertainty and Misclassification". But in United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/177.html?&nocontext=1 an escalation clause requiring expert determination was held to be enforceable even if the mediation element was too uncertain to be enforceable. NB also relevant re severability.		In Australia, stay refused where expert determination was part of a stepped procedure and could not be enforced: Where the contract failed to identify the expert the clause could not be enforced: Banabelle Electrical v State of NSW (2002) 54 NSWLR 503 at 70, [2005] NSWSC 714 at 75 [http://www.austlii.org Austlii]; see (2009) 25 Const LJ 483 Trevor Thomas "Expert Determination in Major Construction Disputes: Public Policy, Uncertainty and Misclassification". But in United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/177.html?&nocontext=1 an escalation clause requiring expert determination was held to be enforceable even if the mediation element was too uncertain to be enforceable. NB also relevant re severability.
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-	\|width=15%\| 12.2 \|\| Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd (2009) ~~TCC~~ 4 June 2009 Ramsey J, Lawtel. See article by Hammonds at http://www.hammonds.com/FileServer.aspx?oID=22616.	+	\|width=15%\| 12.2 \|\| Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB) (04 June 2009)
		+	URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/3839.html 4 June 2009 Ramsey J, Lawtel. See article by Hammonds at http://www.hammonds.com/FileServer.aspx?oID=22616.

	Also article by Peter Ashford at http://www.crippslink.com/index.php?option=com_content&view=article&id=643&Itemid=508 Action is defined in section 38 as “includes any proceeding in a court of law”. Although the use of the word “includes” may contemplate something other than a proceeding in a court it is difficult to imagine what that might be. Another statutory definition of “action” in the Supreme Court Act 1981 defines action more tightly as meaning “any civil proceedings commenced by writ or any other manner prescribed by rules of court.” Furthermore, in Johnson v Refuge Association [1913] Buckley LJ said: “In my opinion it was intended to include in the term “action” any civil proceeding in which there is a plaintiff, who sues, and a defendant, who is sued, in respect of some cause of action, as contrasted with proceedings, such as statutory proceedings, which are embraced in the word “matter.”” Where the legislature wishes to apply the Limitation Act to something other than court proceedings it has to do so expressly as it has done by section 13 Arbitration Act 1996 which provides: “The Limitation Acts apply to arbitral proceedings as they apply to legal proceedings.” An expert determination is thus plainly not an action (or a legal proceeding) and the Limitation Act does not apply to it."		Also article by Peter Ashford at http://www.crippslink.com/index.php?option=com_content&view=article&id=643&Itemid=508 Action is defined in section 38 as “includes any proceeding in a court of law”. Although the use of the word “includes” may contemplate something other than a proceeding in a court it is difficult to imagine what that might be. Another statutory definition of “action” in the Supreme Court Act 1981 defines action more tightly as meaning “any civil proceedings commenced by writ or any other manner prescribed by rules of court.” Furthermore, in Johnson v Refuge Association [1913] Buckley LJ said: “In my opinion it was intended to include in the term “action” any civil proceeding in which there is a plaintiff, who sues, and a defendant, who is sued, in respect of some cause of action, as contrasted with proceedings, such as statutory proceedings, which are embraced in the word “matter.”” Where the legislature wishes to apply the Limitation Act to something other than court proceedings it has to do so expressly as it has done by section 13 Arbitration Act 1996 which provides: “The Limitation Acts apply to arbitral proceedings as they apply to legal proceedings.” An expert determination is thus plainly not an action (or a legal proceeding) and the Limitation Act does not apply to it."
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	\| 12.2 \|\| Jim Ennis Construction Ltd v Premier Asphalt Ltd [2009] EWHC 1906 (TCC) http://www.bailii.org/ew/cases/EWHC/TCC/2009/1906.html "I conclude, therefore, that the obligation to comply with the adjudicator's decision does indeed give rise to a new cause of action in favour of the successful party to compel the losing party to comply with that decision."		\| 12.2 \|\| Jim Ennis Construction Ltd v Premier Asphalt Ltd [2009] EWHC 1906 (TCC) http://www.bailii.org/ew/cases/EWHC/TCC/2009/1906.html "I conclude, therefore, that the obligation to comply with the adjudicator's decision does indeed give rise to a new cause of action in favour of the successful party to compel the losing party to comply with that decision."
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-	\| 12.2.3 \|\| The parties entered into a standstill agreement in Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd (2009) ~~TCC~~ 4 June 2009 Ramsey J~~, Lawtel~~.	+	\| 12.2.3 \|\| The parties entered into a standstill agreement in Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB) (04 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/3839.html 4 June 2009 Ramsey J.

	Mention that another option may be to commence concurrent proceedings as a precaution, as they did in Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd (2009) TCC 4 June 2009 Ramsey J, Lawtel. This was held not to be an election to proceed in the courts.		Mention that another option may be to commence concurrent proceedings as a precaution, as they did in Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd (2009) TCC 4 June 2009 Ramsey J, Lawtel. This was held not to be an election to proceed in the courts.
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	\| 7.21 \|\| More needed on timetables. A time bar and a timetable are not quite the same thing. Timetables (and possibly time bars) are not usually of the essence. See Amherst [1983] Ch 305 and other cases at Woodfall on Landlord and Tenant 8.016 ...		\| 7.21 \|\| More needed on timetables. A time bar and a timetable are not quite the same thing. Timetables (and possibly time bars) are not usually of the essence. See Amherst [1983] Ch 305 and other cases at Woodfall on Landlord and Tenant 8.016 ...

-	Mention that a time bar is desirable, as there is no statutory time limit on the commencement of an expert determination: Braceforce. See 12.2.1	+	Mention that a time bar is desirable, as there is no statutory time limit on the commencement of an expert determination: Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB) (04 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/3839.html. See 12.2.1
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	\| 7.21.5 \|\| Some of the rent review cases may have wider implications. See 7.21 above.		\| 7.21.5 \|\| Some of the rent review cases may have wider implications. See 7.21 above.
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	\| 11.7.1 n 97 \|\| Change to "... [1998] 2 E.G.L.R. at 90, that if there were issues of construction of the contract which the court had jurisdiction to decide, the discretion should be exercised ..."		\| 11.7.1 n 97 \|\| Change to "... [1998] 2 E.G.L.R. at 90, that if there were issues of construction of the contract which the court had jurisdiction to decide, the discretion should be exercised ..."
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-	\| 12.2.3 \|\| We should add a sentence on how one stops time running, and how an expert determination is commenced. Cases on commencing an expert determination are Bernhard Schulte (see 7.21.3) and Braceforce (mentioned here with reference to 12.2).	+	\| 12.2.3 \|\| We should add a sentence on how one stops time running, and how an expert determination is commenced. Cases on commencing an expert determination are Bernhard Schulte (see 7.21.3) and Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB) (04 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/3839.html (mentioned here with reference to 12.2).
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	\| 14.1 \|\| We should include lack of jurisdiction as a ground of challenge, and cross-refer to Chapter 11. Also in 14.3.		\| 14.1 \|\| We should include lack of jurisdiction as a ground of challenge, and cross-refer to Chapter 11. Also in 14.3.

Electronic Disclosure

2010-08-30T15:12:39Z

Failure to disclose documents

←Older revision		Revision as of 15:12, 30 August 2010
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	* Late disclosure by OFSTED in the Shoesmith judicial review case - costs of attending hearing related to late disclosure awarded to claimant on the indemnity basis: [http://www.bailii.org/ew/cases/EWHC/Admin/2009/B35.html Shoesmith, R (on the application of) v OFSTED] [2009] EWHC B35 (Admin); [http://www.bailii.org/ew/cases/EWHC/Admin/2010/852.html Shoesmith, R (on the application of) v OFSTED] [2010] EWHC 852 (Admin) - see paragraphs 19-22, 43 and Appendix 2. At paragraph 43 of the judgment and paragraphs 25-26 of Appendix 2 the judge referred to the cases on drawing adverse inferences. Foskett J referred to "the wholly inadequate way in which Ofsted's duty of candour was addressed initially in this case." [http://chrisdale.wordpress.com/2009/12/15/the-baby-p-case-may-be-the-disclosure-story-of-the-year/ Commentary by Chris Dale]. [http://chrisdale.wordpress.com/2010/04/23/shoesmith-loses-judicial-review-but-disclosure-candour-questions-remain-open/ Second commentary by Chris Dale]		* Late disclosure by OFSTED in the Shoesmith judicial review case - costs of attending hearing related to late disclosure awarded to claimant on the indemnity basis: [http://www.bailii.org/ew/cases/EWHC/Admin/2009/B35.html Shoesmith, R (on the application of) v OFSTED] [2009] EWHC B35 (Admin); [http://www.bailii.org/ew/cases/EWHC/Admin/2010/852.html Shoesmith, R (on the application of) v OFSTED] [2010] EWHC 852 (Admin) - see paragraphs 19-22, 43 and Appendix 2. At paragraph 43 of the judgment and paragraphs 25-26 of Appendix 2 the judge referred to the cases on drawing adverse inferences. Foskett J referred to "the wholly inadequate way in which Ofsted's duty of candour was addressed initially in this case." [http://chrisdale.wordpress.com/2009/12/15/the-baby-p-case-may-be-the-disclosure-story-of-the-year/ Commentary by Chris Dale]. [http://chrisdale.wordpress.com/2010/04/23/shoesmith-loses-judicial-review-but-disclosure-candour-questions-remain-open/ Second commentary by Chris Dale]
		+
		+	* In [http://www.bailii.org/ew/cases/EWHC/Ch/2010/2015.html Rybak v Langbar International Ltd] [2010] EWHC 2015 (Ch) the claim and defence to counterclaim were struck out following the claimant's use of secure deleletion software with the intention of deliberately deleting files which might otherwise have been retrievable.

	====Failing to have meetings with the other party====		====Failing to have meetings with the other party====

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ExpertDetermination

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